Chapter DHS 89

DHS 89.41   Applicability.

DHS 89.42   Information requirements, application procedure and form.

DHS 89.43   Issuance.

DHS 89.44   Termination and revocation.

DHS 89.45   Appeals.

Subchapter V — Certification

DHS 89.51   Applicability.

DHS 89.52   Standards for operation.

DHS 89.53   Certification procedures.

DHS 89.54   Reporting of changes.

DHS 89.55   Monitoring.

DHS 89.56   Intermediate sanctions and penalties.

DHS 89.57   Revocation.

DHS 89.58   Coercion and retaliation prohibited.

DHS 89.59   Appeals.

Subchapter VI — Approval of Partial Conversion of a Nursing Home or Community-Based Residential Facility

DHS 89.61   Submission of additional information.

DHS 89.62   Application review and approval.

Ch. DHS 89 Note Note: This chapter was titled Assisted Living Facilities before December 1, 1998. Chapter HFS 89 was renumbered to chapter DHS 89 under s. 13.92 (4) (b) 1., Stats., and corrections made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635.

subch. I of ch. DHS 89 Subchapter I — General Provisions

DHS 89.11 DHS 89.11 Authority and purpose. This chapter is promulgated under the authority of s. 50.034, Stats., to establish standards and procedures for the certification or registration of residential care apartment complexes in order to promote the health and safety of persons residing in and receiving services from those facilities. This chapter is intended to ensure that all residential care apartment complexes provide each tenant with an independent apartment in a setting that is home-like and residential in character; make available personal, supportive and nursing services that are appropriate to the needs, abilities and preferences of individual tenants; and operate in a manner that protects tenants’ rights, respects tenant privacy, enhances tenant self-reliance and supports tenant autonomy in decision-making including the right to accept risk.

DHS 89.11 Note Note: Before September 6, 1997, residential care apartment complexes were called “assisted living facilities.” The name change was made by 1997 Wisconsin Act 13.

DHS 89.11 History History: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98.

DHS 89.12 DHS 89.12 Applicability.

DHS 89.12(1) (1) This chapter applies to the department and to all residential care apartment complexes operating in Wisconsin.

DHS 89.12(2) (2) This chapter does not apply to nursing homes, community-based residential facilities or hospitals or to congregate housing or housing for the elderly.

DHS 89.12 History History: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98.

DHS 89.13 DHS 89.13 Definitions. In this chapter:

DHS 89.13(1) (1) “Residential care apartment complex” or “facility” means a place where 5 or more adults reside that consists of independent apartments, each of which has an individual lockable entrance and exit, a kitchen, including a stove, and individual bathroom, sleeping and living areas, and that provides, to a person who resides in the place, not more than 28 hours per week of services that are supportive, personal and nursing services. “Residential care apartment complex” does not include a nursing home or a community-based residential facility, but may be physically part of a structure that is a nursing home or community-based residential facility.

DHS 89.13(2) (2) “Residential care apartment complex services” means services provided by a residential care apartment complex, either directly or under contract, to meet needs identified in a tenant’s service agreement, to meet unscheduled care needs or to provide emergency services 24 hours a day.

DHS 89.13(3) (3) “Bathroom” means a room with floor to ceiling walls and a door which contains a toilet, a sink and a bathtub or shower.

DHS 89.13(4) (4) “Community-based residential facility” has the meaning specified in s. 50.01 (1g), Stats.

DHS 89.13(5) (5) “Comprehensive assessment” means a systematic procedure for identifying an individual’s physical, health and social needs; preferences; and capacity for self-care.

DHS 89.13(6) (6) “Congregate housing” means multi-unit rental housing which offers limited social support for tenants, including meals in a common dining room and space for group social and recreational activities.

DHS 89.13 Note Note: Congregate housing may become a residential care apartment complex if it chooses to offer supportive, personal and nursing services.

DHS 89.13(7) (7) “Contract” means all written agreements between the tenant and the residential care apartment complex, including the service agreement, the risk agreement and any rental or sales contract.

DHS 89.13(8) (8) “Department” means the Wisconsin department of health services.

DHS 89.13(9) (9) “Designated representative” means anyone identified by a tenant to represent the tenant in relation to the tenant’s residential care apartment complex. A designated representative may be a family member, friend, health care agent, guardian or other person named by the tenant.

DHS 89.13(10) (10) “Emergency assistance” means aid provided in the event of a situation that creates an imminent risk of serious harm to the health or safety of the person if he or she is not helped immediately.

DHS 89.13(11) (11) “Functionally distinct area” means a space that can be distinguished from other areas within the apartment by its actual or intended use. A functionally distinct area need not be a separate room.

DHS 89.13(12) (12) “Health monitoring” means the assessment of physical, functional and cognitive status to detect changes that may indicate health problems and to facilitate appropriate intervention. Health monitoring includes assessment of nutritional status, confusion, unsteady gait, urinary incontinence, edema of extremities, fever, hypertension and other conditions.

DHS 89.13(13) (13) “Hospice care” means medical or support services for management of a terminal illness furnished by a hospice as defined in s. 50.90 (1), Stats.

DHS 89.13(14) (14) “Housing for the elderly” means multi-unit rental housing that is specially designed for and marketed to older people but does not offer supportive services, personal services and nursing services to its tenants.

DHS 89.13 Note Note: Housing for the elderly may become a residential care apartment complex if it chooses to offer supportive, personal and nursing services.

DHS 89.13(15) (15) “Incapable of making care decisions” means unable to understand one’s own needs for supportive, personal or nursing services; to choose what, if any, services one wants to receive to meet those needs; and to understand the outcome likely to result from that choice. The term refers to the ability to make a decision and not to the content or result of the decision.

DHS 89.13(16) (16) “Independent apartment” means an individual living unit that has its own individual lockable entrance and exit, kitchen, bathroom, sleeping and living areas.

DHS 89.13(17) (17) “Individual lockable entrance and exit” means a door that provides access to an independent apartment and is equipped with an individually keyed lock which is operable from both inside and outside the unit and which the tenant can open, close and lock to ensure privacy.

DHS 89.13(17m) (17m) “Involuntary administration of psychotropic medication” means any of the following:

DHS 89.13(17m)(a) (a) Placing psychotropic medication in an individual’s food or drink with knowledge that the individual protests receipt of the psychotropic medication.

DHS 89.13(17m)(b) (b) Forcibly restraining an individual to enable administration of psychotropic medication.

DHS 89.13(17m)(c) (c) Requiring an individual to take psychotropic medication as a condition of receiving privileges or benefits.

DHS 89.13(18) (18) “Kitchen” means a visually and functionally distinct area within the living unit which is intended to be used exclusively for food preparation and which contains a stove, a refrigerator, a sink, counter space for food preparation and a place for storage of utensils and supplies.

DHS 89.13(19) (19) “Living area” means a visually and functionally distinct area within the living unit which is intended for general use and which is not a bathroom, kitchen or sleeping area.

DHS 89.13(20) (20) “Medical assistance” means the assistance program under ss. 49.43 to 49.475 and 49.49 to 49.497, Stats., and chs. DHS 101 to 108.

DHS 89.13(21) (21) “Medication administration” means giving or assisting tenants in taking prescription and nonprescription medications in the correct dosage, at the proper time and in the specified manner.

DHS 89.13(22) (22) “Medication management” means oversight by a nurse, pharmacist or other health care professional to minimize risks associated with use of medications. Medication management includes proper storage of medications; preparation of a medication organization or reminder system; assessment of the effectiveness of medications; monitoring for side effects, negative reactions and drug interactions; and delegation and supervision of medication administration.

DHS 89.13(23) (23) “Nursing home” has the meaning specified in s. 50.01 (3), Stats.

DHS 89.13(24) (24) “Nursing services” means nursing procedures, excluding personal services, which, according to the provisions of ch. 441, Stats., the nurse practice act, must be performed by a registered nurse or as a delegated act under the supervision of a registered nurse.

DHS 89.13(25) (25) “Personal services” means direct assistance with activities of daily living, including dressing, eating, bathing, grooming, toileting, transferring and ambulation or mobility.

DHS 89.13(25g) (25g) “Protest” means make more than one discernible negative response, other than mere silence, to the offer of, recommendation for, or other proffering of voluntary receipt of psychotropic medication. “Protest” does not mean a discernible negative response to a proposed method of administration of the psychotropic medication.

DHS 89.13(25r) (25r) “Psychotropic medication” means a prescription drug, as defined in s. 450.01 (20), Stats., that is used to treat or manage a psychiatric symptom or challenging behavior.

DHS 89.13(26) (26) “Recuperative care” means services provided for a period of 90 days or less which are intended to assist a person in recovering from an illness, injury, surgery or other acute condition or to stabilize the health or functioning of the individual.

DHS 89.13(27) (27) “Risk agreement” means a binding stipulation identifying conditions or situations which could put the tenant at risk of harm or injury and the tenant’s preference for how those conditions or situations are to be handled.

DHS 89.13(28) (28) “Service agreement” means a binding stipulation between the tenant and the facility which specifies services the facility will provide and the tenant will accept.

DHS 89.13(29) (29) “Sleeping area” means a visually and functionally distinct area within the living unit which is intended to be used for sleeping. A sleeping area does not include a bathroom, kitchen or living area.

DHS 89.13(30) (30) “Stove” means a cooking appliance that is a microwave oven of at least 1000 watts or that consists of burners and an oven.

DHS 89.13(31) (31) “Supportive services” means assistance with tasks which the tenant cannot perform for himself or herself as a result of functional limitations, or one-on-one supervision of the tenant. Supportive services include meals, housekeeping, laundry, arranging for transportation and arranging for access to medical services.

DHS 89.13(32) (32) “Tenant” means an individual who resides in and has a service agreement with a residential care apartment complex.

DHS 89.13(33) (33) “Unscheduled care need” means any need for supportive, personal or nursing services the timing of which cannot be predicted, such as incontinence care. Unscheduled care needs do not include the need for emergency assistance.

DHS 89.13(34) (34) “Visually distinct area” means a space which can be distinguished from other areas within the apartment by sight. A visually distinct area need not be a separate room.

DHS 89.13 History History: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. (30), Register, November, 1998, No. 515, eff. 12-1-98; CR 07-042: cr. (17m), (25g) and (25r) Register October 2007 No. 622, eff. 11-1-0; corrections in (8) and (20) made under s. 13.92 (4) (b) 6. and 7., Stats., Register November 2008 No. 635.

DHS 89.14 DHS 89.14 Registration or certification requirement. All residential care apartment complexes shall be either registered or certified by the department under this chapter.

DHS 89.14 History History: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98.

DHS 89.15 DHS 89.15 Limitation on use of name “residential care apartment complex”. As provided in s. 50.034 (5), Stats., an entity that does not meet the definition of residential care apartment complex under s. 50.01 (6d), Stats., may not designate itself as a residential care apartment complex or use the words “residential care apartment complex” to represent or tend to represent the entity as a residential care apartment complex or services provided by the entity as services provided by a residential care apartment complex.

DHS 89.15 History History: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98; correction made under s. 13.92 (4) (b) 7., Stats., Register February 2015 No. 710.

subch. II of ch. DHS 89 Subchapter II — General Requirements for Operation

DHS 89.21 DHS 89.21 Applicability. The provisions of this subchapter apply to all residential care apartment complexes.

DHS 89.21 History History: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98.

DHS 89.22 DHS 89.22 Building requirements.

DHS 89.22(1) (1) Compliance with applicable codes. A residential care apartment complex shall comply with all applicable statutes, rules and regulations.

DHS 89.22 Note Note: The Wisconsin department of safety and professional services considers residential care apartment complexes to be multifamily dwellings subject to the code in effect at the time of construction.

DHS 89.22(2) (2) Apartments.

DHS 89.22(2)(a) (a) Independent apartments. All living units in a residential care apartment complex shall be independent apartments.

DHS 89.22(2)(b) (b) Physical features. Each independent apartment shall have at least the following:

DHS 89.22(2)(b)1. 1. An individual lockable entrance and exit. A single door may serve as both entrance and exit. Keys to the door to the independent apartment and to the residential care apartment complex shall be supplied to the tenant.

DHS 89.22(2)(b)2. 2. A kitchen. The kitchen shall be a visually and functionally distinct area within the apartment. The refrigerator shall have a freezer compartment. The sink shall have hot and cold running water. The stove shall be designed so that it can be disconnected, if necessary, for tenant safety.

DHS 89.22(2)(b)3. 3. An individual bathroom. The bathroom shall not be shared with or accessed from any other living unit.

DHS 89.22(2)(b)4. 4. Sleeping and living areas. The sleeping and living areas shall each be visually and functionally distinct areas within the apartment but need not be separate rooms. These areas shall contain sufficient space so that the tenant does not have to either sleep in the living area or use the sleeping area for eating, socializing or other general living uses and so that the tenant has the ability, if he or she so wishes, to arrange furniture in a way that provides some visual privacy for the sleeping area.